[Federal Register Volume 88, Number 231 (Monday, December 4, 2023)]
[Notices]
[Pages 84146-84148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26564]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2023-N-2564]


Agency Information Collection Activities; Submission for Office 
of Management and Budget Review; Comment Request; Channels of Trade 
Policy for Commodities With Residues of Pesticide Chemicals, for Which 
Tolerances Have Been Revoked, Suspended, or Modified by the 
Environmental Protection Agency Pursuant to Dietary Risk Considerations

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) is announcing that a 
proposed collection of information has been submitted to the Office of 
Management and Budget (OMB) for review and clearance under the 
Paperwork Reduction Act of 1995.

DATES: Submit written comments (including recommendations) on the 
collection of information by January 3, 2024.

ADDRESSES: To ensure that comments on the information collection are 
received, OMB recommends that written comments be submitted to https://www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under Review--Open for Public 
Comments'' or by using the search function. The OMB control number for 
this information collection is 0910-0562. Also include the FDA docket 
number found in brackets in the heading of this document.

FOR FURTHER INFORMATION CONTACT: Amber Sanford, Office of Operations, 
Food and Drug Administration, Three White Flint North, 10A-12M, 11601 
Landsdown St., North Bethesda, MD 20852, 301-796-8867, 
[email protected].

SUPPLEMENTARY INFORMATION: In compliance with 44 U.S.C. 3507, FDA has 
submitted the following proposed collection of information to OMB for 
review and clearance.

Channels of Trade Policy for Commodities With Residues of Pesticide 
Chemicals, for Which Tolerances Have Been Revoked, Suspended, or 
Modified by the Environmental Protection Agency Pursuant to Dietary 
Risk Considerations

OMB Control Number 0910-0562--Extension

    This information collection supports FDA guidance. The Food Quality 
Protection Act of 1996 (Pub. L. 104-170), which amended the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA) (Pub. L. 80-104) 
and the Federal Food, Drug, and Cosmetic Act (FD&C Act), established a 
new safety standard for pesticide residues in food, with an emphasis on 
protecting the health of infants and children. The Environmental 
Protection Agency (EPA) is responsible for regulating the use of 
pesticides (under FIFRA) and for establishing tolerances or exemptions 
from the requirement for tolerances for residues of pesticide chemicals 
in food commodities (under the FD&C Act). EPA may, for various reasons, 
e.g., as part of a systematic review or in response to new information 
concerning the safety of a specific pesticide, reassess whether a 
tolerance for a pesticide residue continues to meet the safety standard 
in section 408 of the FD&C Act (21 U.S.C. 346a). When EPA determines 
that a pesticide's tolerance level does not meet that safety standard, 
the registration for the pesticide may be canceled under FIFRA for all 
or certain uses. In addition, the tolerances for that pesticide may be 
lowered or revoked for the corresponding food commodities.
    Under section 408(l)(2) of the FD&C Act, when the registration for 
a pesticide is canceled or modified due to, in whole or in part, 
dietary risks to humans posed by residues of that pesticide chemical on 
food, the effective date for the revocation of such tolerance (or 
exemption in some cases) must be no later than 180 days after the date 
such cancellation becomes effective or 180 days after the date on which 
the use of the canceled pesticide becomes unlawful under the terms of 
the cancellation, whichever is later.
    When EPA takes such actions, food derived from a commodity that was 
lawfully treated with the pesticide may not have cleared the channels 
of trade by the time the revocation or new tolerance level takes 
effect. The food could be found by FDA, the Agency that is responsible 
for monitoring pesticide residue levels and enforcing the pesticide 
tolerances in most foods (the U.S. Department of Agriculture has 
responsibility for monitoring residue levels and enforcing pesticide 
tolerances in meat, poultry, catfish, and certain egg products), to 
contain a residue of that pesticide that does not comply with the 
revoked or lowered tolerance. We would normally deem such food to be in 
violation of the law by virtue of it bearing an illegal pesticide 
residue. The food would be subject to FDA enforcement action as an 
``adulterated'' food. However, the channels of trade provision of the 
FD&C Act addresses the circumstances under which a food is not unsafe 
solely due to the presence of a residue from a pesticide chemical for 
which the tolerance has been revoked, suspended, or modified by EPA. 
The channels of trade provision (section 408(l)(5) of the FD&C Act) 
states that food containing a residue of such a pesticide shall not be 
deemed ``adulterated'' by virtue of the residue, if the residue is 
within the former tolerance, and the responsible party can demonstrate 
to FDA's satisfaction that the residue is present as the result of an 
application of the pesticide at a time and in a manner that were lawful 
under FIFRA.
    To assist respondents with the information collection, we have 
developed the guidance document entitled ``Channels of Trade Policy for 
Commodities With Residues of Pesticide Chemicals, for Which Tolerances 
Have Been Revoked, Suspended, or Modified by the Environmental 
Protection Agency Pursuant to Dietary Risk Considerations'' (May 2005). 
The guidance represents FDA's current thinking on its planned 
enforcement approach to the channels of trade provision of the FD&C Act 
and how that provision relates to FDA-regulated products with residues 
of pesticide chemicals for which tolerances have been revoked, 
suspended, or modified by EPA under dietary risk considerations. The 
guidance can be

[[Page 84147]]

found at the following link: https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidance-industry-channels-trade-policy-commodities-residues-pesticide-chemicals-which-tolerances.
    We anticipate that food bearing lawfully applied residues of 
pesticide chemicals that are the subject of future EPA action to 
revoke, suspend, or modify their tolerances, will remain in the 
channels of trade after the applicable tolerance is revoked, suspended, 
or modified. If we encounter food bearing a residue of a pesticide 
chemical for which the tolerance has been revoked, suspended, or 
modified, we intend to address the situation in accordance with 
provisions of the guidance. In general, we anticipate that the party 
responsible for food found to contain pesticide chemical residues 
(within the former tolerance) after the tolerance for the pesticide 
chemical has been revoked, suspended, or modified will be able to 
demonstrate that such food was handled, e.g., packed or processed, 
during the acceptable timeframes cited in the guidance by providing 
appropriate documentation to FDA as discussed in the guidance document. 
We are not suggesting that firms maintain an inflexible set of 
documents where anything less or different would likely be considered 
unacceptable. Rather, we are leaving it to each firm's discretion to 
maintain appropriate documentation to demonstrate that the food was so 
handled during the acceptable timeframes. Examples of documentation 
that we anticipate will serve this purpose consist of documentation 
associated with packing codes, batch records, and inventory records. 
These are types of documents that many food processors routinely 
generate as part of their basic food-production operations.
    Description of Respondents: The likely respondents to this 
collection of information are firms in the produce and food processing 
industries that handle food products that may contain residues of 
pesticide chemicals after the tolerances for the pesticide chemicals 
have been revoked, suspended, or modified.
    In the Federal Register of August 2, 2023 (88 FR 50880), FDA 
published a 60-day notice requesting public comment on the proposed 
collection of information. We received 2 comments, one of which was not 
PRA related and will not be addressed in this document. The other 
comment questioned the utility of pesticide application records used to 
demonstrate a pesticide was applied at an acceptable time and in a 
lawful manner for crops commingled with other commodities. The channels 
of trade provision (section 408(l)(5) of the FD&C Act) states that food 
containing a residue of such a pesticide shall not be deemed 
``adulterated'' by virtue of the residue, if the residue is within the 
former tolerance, and the responsible party can demonstrate to FDA's 
satisfaction that the residue is present as the result of an 
application of the pesticide at a time and in a manner which were 
lawful under FIFRA. We leave it to each firm's discretion to maintain 
appropriate documentation to demonstrate that the food was so handled 
during the acceptable timeframes. Pesticide spray records may be used 
as a documentation to demonstrate the residues in food are from an 
application of the pesticide at a time and in a manner which were 
lawful under FIFRA.
    We estimate the burden of this collection of information as 
follows:

                                                     Table 1--Estimated Annual Reporting Burden \1\
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                                                                                         Number of
                              Activity                                  Number of      responses per     Total annual    Average burden    Total hours
                                                                       respondents       respondent       responses       per response
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Submission of documentation........................................               1                1                1                3                3
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\1\ There are no capital costs or operating and maintenance costs associated with this collection of information.

    We expect the total number of pesticide tolerances that are 
revoked, suspended, or modified by EPA under dietary risk 
considerations in the next 3 years to remain at a low level, as there 
have been no changes to the safety standard for pesticide residues in 
food since 1996. Thus, we expect the number of submissions we receive 
under the guidance document to also remain at a low level. However, to 
avoid counting this burden as zero, we have estimated the burden at one 
respondent making one submission a year for a total of one annual 
submission.

                                                   Table 2--Estimated Annual Recordkeeping Burden \1\
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                                                                                         Number of
                              Activity                                  Number of       records per      Total annual    Average burden    Total hours
                                                                      recordkeepers     recordkeeper       records         per record
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Develop documentation process......................................               1                1                1               16               16
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\1\ There are no capital costs or operating and maintenance costs associated with this collection of information.


[[Page 84148]]

    Based on a review of the information collection since our last 
request for OMB approval, we have made no adjustments to our burden 
estimate.

    Dated: November 29, 2023.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2023-26564 Filed 12-1-23; 8:45 am]
BILLING CODE 4164-01-P